reasons it must not be assumed that either of those cases has decided that there is no necessity to trace the trust funds into the property which passes to the assignee, or to the representative, but the rule is to be taken as subject to that limitation. That this is true is very completely demonstrated by the very able and perspicacious opinion of Mr. Justice Goddard in a recent case in the supreme court. McClure v. Board, 34 Pac. 763. The court there recognizes the rule that, wherever property held in trust has been misapplied, it may be followed, but upon condition that the property can be traced, in which event, whether in the old or the new form, it may be subjected to the use of the cestui que trust. The court apparently had some difficulty in escaping the force of the case of McLeod v. Evans, 66 Wis. 401, 28 N. W. 173, 214, and, for the purposes of announcing the rule to be followed, quotes from the dissenting opinion of Judge Cassoday, who said: "An equitable lien exists only when the trust money is directly or indirectly traceable to the fund sought to be charged." This circumstance very clearly discloses the trend of the opinion. The doctrine stated is in very complete harmony with the bestconsidered cases, and very accurately enunciates the law. The case in Wisconsin has since been overruled in the Nonotuck Silk Co. Case, hereafter cited. In the latter case it was clearly settled that, to entitle a trust creditor to a preference, it must be satisfactorily established that the property of the insolvent, remaining for distribution, includes the proceeds of the trust estate. Nonotuck Silk Co. v. Flanders (Wis.) 58 N. W. 3S3; Cavin v. Gleason, 105 N. Y. 257, 11 N. E. 504; Elevator Co. v. Clark (N. D.) 53 N. W. 175; Little v. Chadwick, 151 Mass. 109, 23 N. E. 1005; Bank v. Goetz, 138 Ill. 127, 27 N. E. 907; Ellison v. Moses, 95 Ala. 221, 11 South. 347; Sherwood v. Bank, 94 Mich. 78, 53 N. W. 923. A consideration of the facts stated at the outset of this opinion very readily satisfies us that the case, as laid, does not come within the limits essential to the application of the doctrine. All the case shows is that Rohrer, as administrator, received funds, and misappropriated them, ultimately became insolvent, and transferred his estate to an assignee. What of the trust funds, if any, passed to the assignee,-whether in the shape of the original moneys received by Rohrer, or of other funds into which it had been transmuted,-or what property passed by the assignment into which trust funds had gone, the record does not disclose. Under these circumstances, it is manifest, the court was powerless to decree any preference to the administrator.

It was seriously contended in the argument that, because the plaintiff in error was an administrator de bonis non, he could in no event maintain his petition, since his only rights and remedies concerned the unadmin

doubtless the ancient rule, and it still prevails in some states, though the more modern doctrine has enlarged the powers of such an administrator with reference to the decedent's property. It is useless to investigate this question in Colorado, since our statutes (Gen. St. § 3548; Mill's Ann. St. § 4720) entirely dispose of this question. By these statutes there is preserved to such an administrator full authority to resort to such remedies as may be essential to preserve or recover the estate of his decedent, whether from strangers or from former representatives.

The court erred in decreeing the administrator entitled to a proference as to $551.80, and the judgment is accordingly reversed and remanded, Reversed.

(5 Colo. App. 66)

POUNDSTONE et al. v. HOLT. (Court of Appeals of Colorado. June 11, 1894.) MORTGAGOR'S EQUITY-ATTACHMENT-REMEDY OF MORTGAGEE-DEFECT OF PARTIES HOW QUESTION RAISED.

1. When a mortgagee has possession, through her agent, of specific mortgaged property, she may sue persons taking the same under an attachment against the mortgagor.

2. A creditor cannot reach a mortgagor's equity of redemption in a chattel by attaching the chattel.

3. A defect of parties can only be taken advantage of by demurrer or by answer. Appeal from district court, Rio Grande county.

Action by Clara E. Holt against John J. Poundstone and others. There was a judgment for plaintiff, and defendants appeal. Affirmed.

Ira J. Bloomfield, for appellants. C. M. Corlett, for appellee.

BISSELL, P. J. This suit is the outgrowth of the litigation which sprung up between the different creditors of Garrison & Howard. Part were secured by sundry mortgages which the firm executed at the time of their failure, and the remainder were omitted from the preferred list. Some facts which are not properly before the court in this particular case will be suggested, in order to make the controversy and decision perfectly intelligible. The principal question raised has just been disposed of in an opinion announced by the court in the case of Grocer Co. v. Garrison (decided at the present term of the court) 37 Pac. 31. A motion was filed in the present case for leave to file the printed abstract in that one for the purpose of bringing before the court, to aid the determination of this suit, the evidence taken therein. At the time of the trial the parties stipulated that the evidence in that case, in so far as it was material and relevant, might be used on the trial of the issue presented by the parties here. Presumably, that evidence was consid

failed to preserve it in the present record in such a way that it is legitimately before the court for consideration. It is also true that the bill of exceptions, as filed in this case, is authenticated in a manner which prevents us from considering any matters of fact suggested in the briefs. The certificate fails to state that the bill of exceptions contains all the evidence introduced, and in fact, by express statement, excludes exhibits which were probably offered. A copy of the bill of exceptions in the McCord-Bragdon Case was likewise not made a part of the present record, so that in these respects the court is very considerably hampered in the statement of its conclusions. In general, it may be said that in January, 1892, Garrison & Howard were merchants doing business in Garrison. In the latter part of the month they executed divers notes and mortgages, and delivered them to sundry of their creditors, who immediately took possession of their stock of merchandise, and of whatever other property the firm owned. The appellee, Holt, was one of the number, and she evidently received a mortgage upon certain personal property, of the value of about $350. The property need not be specified. The security named the articles mortgaged, and, according to the judgment, possession was delivered to the mortgagee. Subsequently, the present appellants seized the property under a writ of attachment issued in a suit brought by Miles against the firm to recover a debt owed by the copartnership. The constable attempted to levy his process upon this particular property, took it into possession, and ultimately sold it, and the present action was brought to recover its value.

A good many questions are discussed by counsel, but the resolution of a few of them will serve to adjudicate the rights of the parties. The appellants contend that, according to the testimony in the record, the various mortgagees to whom Garrison & Howard had transferred their property turned their possession over to one Shotwell, as their agent, who held the property for the benefit of the various parties. Upon this simple circumstance an argument is made that the mortgagees were jointly in possession, and therefore without right, individually, to maintain actions for any interference with their possession. We are not required to solve the problem as to the effect of the appointment of a joint agent upon the individual rights of the mortgagees. If it be true, as we must assume for the purposes of this decision, that the mortgage to the appellee, Holt, was of this specific property, her rights, as mortgagee, were not at all affected by the circumstance that the property was holden for her by Shotwell, who was likewise the agent of other mortgagees, and in possession of other parts of the property mortgaged. But In the present case this matter does not seem to be involved. The mortgage covered specific property, which was taken by the con

stable; and the right of action at once accrued to the mortgagee, by reason of this interference with her possession. Whatever the facts may be in regard to the matter, or whatever the record may show, the question of parties is not before the court. It is well settled, under our Code, that, where there is a defect of parties, it is the duty of the complaining defendant to raise this question either by demurrer or by answer, and he is not permitted to rely upon the proof to support his attack. Not having pleaded it, he cannot now question the right of the appellee to maintain her suit. The status of the appellants, as party plaintiff, and officer taking the property, has been entirely settled by the supreme court. Metzler v. James, 12 Colo. 322, 19 Pac. 885; Stevenson v. Lord, 15 Colo. 131, 25 Pac. 313. The remedy of the attachment or execution creditor in relation to property covered by a mortgage is well settled by those adjudications. The officer was without the right to take the property from the mortgagee, nor can he reach any surplus which may be coming to the mortgagor by such a seizure. If the attaching creditor imagines that the equity is of some value, the statute determines the course which he must pursue to make that surplus available for the payment of his debt. Failing in this remedy, he may not preserve his rights by a seizure of the property.

It is seriously contended by the appellants that those decisions are inapplicable, and indecisive of the present suit, because of the invalidity of the security in the present case. It is seriously urged that the mortgage is invalid because it, with the other securities, amounted to a transfer of all the debtors' property, and therefore became a general assignment under the statute, whereby all the creditors were entitled to share ratably in the distribution of the assets of the insolvent firm. If the testimony which had been taken in the other case had been preserved by a proper bill of exceptions in this, whereby all the facts necessary to a decision were properly before the court, this contention must have been determined against the appellants. The result would have been unchanged, even under those circumstances. We held in the Case of McCord-Bragdon Grocer Company, heretofore referred to, that the principle was inapplicable; that the transfers did not amount to an assignment, but that the mortgagees took their property freed from any consequences which would attach in a case of a general assignment under the statute. It would be a matter of supererogation to restate the reasons of the rule, or to reframe the argument by which it was supported. The situation of the present case does not require it, and no good purpose would be subserved by a reargument of the proposition. It is enough to say that there is nothing in the present record which compels us to reverse the case, and it will accordingly be af firmed. Affirmed.

(5 Colo. App. 70)

POUNDSTONE v. MABEN.

and family still occupying the house upon the farm. During the absence of McKay, Ely, claiming to be the owner, sold the grain and

Appeal from district court, Rio Grande county.

Action by Jay D. Maben against John J. Poundstone. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Ira J. Bloomfield, for appellant. C. M. Corlett, for appellee.

PER CURIAM. This case was brought up with the preceding one, of Poundstone v. Holt, 37 Pac. 35; and while, of necessity, two records were filed, both cases were treated and argued as one, though separate judgments must be entered. If the record in the present case may be treated as containing all the matters exhibited by that filed in the preceding cause, the same judgment must consequently be entered. For the reasons expressed for the affirmance of the judgment in the preceding cause, this will be affirmed. Affirmed.

(5 Colo. App. 88)

FLICK v. GRAHAM. (Court of Appeals of Colorado. June 11, 1894.) SALE OF CROPS-CHANGE OF POSSESSION.

Assertion of ownership and control of crops, accompanied by possession until they are harvested and secured, and the vendor's recognition, are sufficient evidence of title in the purchaser to warrant a verdict in favor of his mortgagee under a mortgage executed while he was so in possession, as against a subsequent purchaser from the vendor.

Error to district court, Arapahoe county. Replevin by John H. Graham against William Flick. Judgment for plaintiff. Defendant brings error. Affirmed.

James A. Kilton, for plaintiff in error. Whitford & Lindsley, for defendant in error.

REED, J. It appears that Mary J. and J. B. Emory, being the owners of a farm in Jefferson county, rented it to Jacob Ely for the year 1892, who occupied it with his family, planted and cared for the crops, and conducted the farm until some time in the month of July, when he sold and delivered the growing crops to one George McKay, who entered into the possession, irrigated, harvested, and stacked the crops of grain and hay. After the transfer to McKay, the family of Ely still occupied the house, and McKay stayed with them when at the farm. Ely himself had found other employment, and was away during the week, but came home to spend the Sabbath. His two boys were employed by McKay. As to how McKay became the purchaser of the growing crop and other personal property, the evidence is meager and unsatisfactory. That he had possession and control is established beyond controversy. While so in the possession and control, he executed a chattel mortgage of the growing crop and other personal property to defendant in error to secure advances made. After harvesting and securing the crop, McKay went to the mountains, and was gone some eight days, Ely

erty, to Flick, the plaintiff, put him in possession of the house, etc., and left the country. Flick claiming to be the owner in possession of the house and property, defendant brought this suit in replevin to get possession of the property. A trial was had to a jury, who found for the plaintiff (defendant in error). From such verdict, and the judgment following, the appeal is prosecuted to this court.

There was no question to be determined by the jury but that of ownership and possession. Both parties claimed title from the same source, originating at different dates,that of McKay in July, and that of Flick in September. The principal argument of plaintiff is to the effect that there was no legal testimony to establish the possession and ownership of McKay. We cannot adopt this contention. The fact of his assertion of ownership and control until the crops were secured in stack and Ely's recognition are fully established. That Flick afterwards bought the same property, and paid for it, is also fully established. The question of title of the respective claimants seems to have been fairly submitted to the jury, and found by it, as a question of fact, in favor of McKay, and through him, by virtue of the chattel mortgage, in defendant. According to the well-settled rule of this court, such finding is conclusive.

The third, fourth, and fifth assignments of error, relied upon in argument, are that the court erred in refusing certain evidence offered. As above stated, the only issue to be tried was the title to the property. The evidence offered was not pertinent, and, if admitted, would in no manner have enlightened the jury, being only of circumstances from which an inference might be drawn. The court did not err in rejecting it. The judgment of the court below will be affirmed. Affirmed.

(5 Colo. App. 85)

COE et al. v. BRITTON et al. (Court of Appeals of Colorado. June 11, 1894.) APPEAL FROM COUNTY COURT -NOTICE - MOTION TO DISMISS.

Sess. Laws 1885, p. 159, § 4, provides that, if an appeal from the county to the district court is not taken on the day judgment is rendered, appellant shall serve a notice of appeal on appellee within five days after the appeal is taken, and if such notice be not given the appellee may at any time before such notice is actually served, and after the time when it should have been served, have the judgment of the county court affirmed, or the appeal dismissed. Held, that a motion to dismiss an appeal for failure to give notice of the appeal should be denied if such notice is given at any time before written notice of the motion to dismiss is served.

Error to district court, Chaffee county.

Action by Britton, Smith & Co. against one Reeve. Defendant's goods were seized under a writ of attachment, and Charles A. Coe & Co. intervened, claiming the property under a chattel mortgage executed to them by Reeve. Interveners' petition was dismissed, and they bring error. Reversed.

McCoy & McCoy, for plaintiffs in error. G. K. Hartenstein, for defendants in error.

THOMSON, J. The appellees brought suit in the county court of Chaffee county against B. F. Reeve. A writ of attachment was sued out, by virtue of which certain goods of the defendant were seized. The appellants intervened, claiming the property under a chattel mortgage executed to them by Reeve. The cause was tried, and the plaintiffs had judgment against Reeve; but the claim of the interveners was disallowed, and the petition of intervention dismissed. They prayed an appeal to the district court, which was allowed; the appeal bond to be filed within 10 days. On the 26th day of March, 1892, and within the time fixed, the bond was duly filed, and on the 28th the record was filed with the clerk of the district court. No notice that the appeal was taken having been served upon the plaintiffs or their counsel, on the 22d day of June, 1892, they filed their motion to dismiss the appeal for that reason. No notice of the motion was ever given. On the 1st day of August, 1892, written notice of the appeal, in due legal form, was served upon the attorney of record of the plaintiffs, who on that day indorsed upon it his acceptance of service. On the 2d of August, 1892, the cause was heard upon the motion of plaintiffs to dismiss the appeal, and the motion was sustained.

The statutory provisions concerning appeals from county to district courts, upon which the judgment of dismissal was based, are as follows: "Sec. 4. If the appeal be not taken on the same day on which the judgment is rendered, the appellant shall serve the appellee, or his attorney of record, with in five days after the appeal is taken, with a notice, in writing, stating that an appeal has been taken from the judgment therein specified, which notice shall be served by delivering a copy thereof to such appellee, or his attorney of record. If the appellant fail to give notice of his appeal when such notice is required, the appellee, may, at any time before such notice is actually served, and after the time when it should have been served, have the judgment of the county court affirmed or the appeal dismissed, at his option." Sess. Laws 1885, p. 159. Where notice that an appeal has been taken is not given within five days after it is taken, it is the absolute right of the appellee to have it dismissed, or the judgment affirmed. Webber v. Brieger, 1 Colo. App. 92, 27 Pac. 871; Law v. Nelson, 14 Colo. 409, 24 Pac. 2. But this is a right of which he may avail

himself, or not, as he may see fit. If he should go to trial without raising the objection, the right to do so would be forever gone. Mackey v. Briggs, 16 Colo. 143, 26 Pac. 131. To procure the disposition of an appeal which the statute authorizes, some direct action on the part of the appellee is necessary. He must make application to the court for the purpose, and, if the application be not made till after service of notice of the appeal, it will be too late. Service of notice of appeal must be made within five days after the appeal is taken, but if there is a default in this particular the appeal will still be saved, if the notice is served before the adverse party has asserted his right to a dismissal or an affirmance. This is clear from the language of the statute. In this case the motion to dismiss was filed on the 22d day of June, and the notice of appeal was not served until the 1st day of August; but on the last-named day no notice of the motion had been given, nor was it ever given. Written notice of motions is required in all cases except those made during the progress of a trial, and the notice must be served upon the opposing party or his attorney within the time, and in the manner, which the law has prescribed. Civ. Code, §§ 372-378. We have held that without such notice, unless it is waived, the court has no jurisdiction to pass upon a motion. Taylor v. Derry (Colo. App.) 35 Pac. 60. Until notice is served there is no motion which the court has any power to consider. An application for an order is not regarded as having been made until the time of the service of the notice; so that, when the plaintiffs received notice of the appeal, there was, in effect, no motion pending to dismiss it. Straat v. Blanchard, 14 Colo. 445, 448, 24 Pac. 561. It is contended, however, that this notice was waived by the appearance of counsel at the hearing. The record recites a special appearance only of the attorneys for the interveners, but at the time of the appearance it was not material whether it was special or general. The appearance to the motion could have no effect, except from the time at which it was made. The hearing was August 2d, and the notice of appeal was served August 1st. At the time of the hearing, everything necessary to make the appeal perfect and complete had already been done. The interveners were then legally in court, and entitled to a trial de novo of their case; and this fact furnished the very reason why the motion should have been resisted, and was the very ground upon which it should have been denied. There is an affidavit in the transcript which recites that after the motion was filed, and before the notice of appeal was given, the motion was called in open court, set for hearing, and continued on several occasions, in the presence of counsel for the interveners, who participated in some discussion which arose in connection with the motion. What the na

ture of the discussion was, is not stated. There is nothing in this upon which a general appearance to the motion could be predicated. Hayes v. James, 1 Colo. App. 130, 27 Pac. 894. The judgment was erroneous, and must be reversed. Reversed.

(5 Colo. App. 190)

COLORADO LAND & WATER CO. v. ADAMS.

(Court of Appeals of Colorado. June 11, 1894.) SPECIFIC PERFORMANCE PART EXECUTION OF CONTRACT-FURNISHING WATER FOR IRRIGATION -CORPORATE CONTRACT-RATIFICATION.

1. The specific performance of a contract by an irrigation company to furnish a certain quantity of water will be enforced where the other party has constructed a lateral drain to the canal, several miles in length, for the purpose of conveying the water to his farm.

2. In an action against an irrigation company to compel specific performance of a contract to furnish water, it appeared that the promoter of the company employed an agent to solicit subscriptions. After the corporation was formed, the promoter, who was then president of the company, wrote to the agent, acknowledging that the contracts entered into by him before the corporation was formed were binding upon it, but ordered him to make future contracts for water on a different basis. Held, that the corporation had adopted the contracts, so as to be bound thereby, and could not afterwards change their terms.

Bissell, P. J., dissenting.

Appeal from district court, Otero county. Action by R. L. Adams against the Colorado Land & Water Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Hartzell & Patterson, for appellant. Gerry & Rittenhouse, for appellee.

REED, J. This was a suit brought for the specific performance of a contract. On the 28th day of January, 1890, appellant contemplated and intended to construct an extensive canal for irrigating purposes; the water to be disposed of by the sale of perpetual water rights, each for 80 acres of land. Appellee-being the owner of land which would be under the ditch, and desirous to secure water-on the date mentioned entered into a contract with appellant for the purchase of a right; taking the agreement, in parol, of appellant, to execute and deliver a deed at some future time, and executing and delivering a promissory note, of which the following is a copy: "$800. Rocky Ford, Colo., Jan. 28th, 1890. April 1st, after date, for value received, I promise to pay to the order of the Colorado Land & Canal Company eight hundred dollars, with interest at the rate of 10 per cent. per annum from date until paid. And having deposited with said canal company, as collateral security, one water right, I hereby authorize the said canal company or assigns, upon the nonpayment of this note, to sell said collateral at public or private sale, at

its option, and without demand or notice. R. L. Adams." The canal had not been constructed, nor was appellant in a condition, or prepared, at the time, to make conveyances. The canal was not completed until July, 1891, although 55 miles was constructed by November, 1890. For a history of the canal, and the change in the name of the corporation, etc., see Colorado Land & Water Co. v. Rocky Ford, etc., Co. (Colo. App.) 34 Pac. 580. The water right to be deposited as collateral security, mentioned in the note, was shown and conceded to be the one purchased and to be received from the appellant. The contract of appellant, as established by the evidence of its agent, Ament, who made it, was for a perpetual water right, of 1.44 cubic feet of water per second, from the 15th of April to the 1st of November of each year. The note was not paid at maturity, nor was any demand made for payment, nor any deed of the water right tendered. The land of appellee was some six miles from the line of the canal, and he, with others in the same vicinity, similarly situated, and under contracts with appellant, constructed a lateral ditch from the canal to their lands. As shown by Mr. Ament (appellant's agent), in the fall of 1890 appellee tendered to him the money in payment of his note, and demanded a deed for the water right. He said: "He came to me to settle up for the water, and get his water deed and contract." "He tendered the money to me, but I preferred to have it deposited in the bank." And appellee and he went to the bank, made the deposit, and instructed the cashier to pay it to appellant when it delivered to the bank a deed of the form and character conceded by the agent to be the conveyance agreed upon. A deed was sent by the company, which was rejected by appellee, and shown by all the evidence to have differed materially from the one contracted for. The quantity of water conveyed was 1.08 cubic feet per second, instead of 1.44 (reducing it by about onefourth), and the time the water was to be furnished in each season was reduced nearly one-half. It does not appear that the company at any time rescinded or denied the validity of the contracts, at all times expressing a willingness to take the agreed price. In a letter written by the president to Mr. Ament, his agent, on November 12, 1890, he said: "Regarding parties of whom you wrote, as having long since contracted for water at the old price, $800, I will say this company raised the price to $1,000 on or about Oct. 15th; but this did not apply to any previous obligations, and parties who had previously contracted with you at $800 will be entitled to water at that price, if closed for at once." On December 23, 1890, Mr. Clarke, the general manager, wrote the agent: "I have to advise you that the price of water from the canal of this company has been placed at $800, for each full-paid perpetual water right